On August 13, 2024, the US Department of Labor’s (DOL) Office of the Solicitor filed a complaint against a Maryland home healthcare agency, alleging retaliation against employees participating in a Wage and Hour Division investigation into possible Fair Labor Standards Act (FLSA) violations. The complaint also accused the company and its owner of retaliatory actions, including employee terminations, falsification of records, filing a civil suit against a former employee, and monitoring employee communications to deter participation in the investigation.
The department obtained a temporary restraining order and preliminary injunction, which prohibits the employer and owner from:
- Retaliating against employees for asserting their federal rights.
- Questioning employees about their communications with department officials.
- Requiring employees to sign false and misleading time and pay records or provide false and misleading information.
- Communicating with employees about the investigation without informing them that such communications are not mandatory and cannot be used as a basis for discrimination or retaliation.
- The court order also requires the employer and owner to notify employees of their right to be free from retaliation, and to provide notice and a reason to the department for any future employee terminations.
Compliance Perspective
Issue
Retaliation occurs when an employer, including managers, supervisors, or other personnel, takes adverse action against an employee for engaging in protected activities. Such actions might include firing an employee or taking other negative measures that could dissuade a reasonable employee from raising concerns about potential violations or participating in related investigations. Retaliation can significantly impact overall employee morale. The FLSA includes an anti-retaliation provision that prohibits terminating or discriminating against employees for participating in protected activities, such as filing complaints or cooperating with Wage and Hour Division investigations.
Discussion Points
- Review your policies and procedures related to nonretaliation, to ensure they prohibit firing or taking other adverse actions against employees for reporting concerns or participating in investigations.
- Ensure that staff are aware of your nonretaliation policies and the steps they should take if they suspect wrongdoing, including the use of the anonymous Hotline to report incidents against themselves or their coworkers. Document that these trainings occurred, and file each signed document in the employee’s education file.
- Periodically audit staff understanding of nonretaliation policies and the reporting process. Review incident reports to ensure they were addressed promptly and appropriately.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
